3rd Circuit Requests Supplemental Briefs Prior to 2257 Oral Arguments

Nov 1, 2015 6:00 AM PST

PHILADELPHIA — The 3rd U.S. Circuit Court of Appeals has alerted counsel for Free Speech Coalition and the Justice Department that it is seeking “supplemental briefing” addressing the applicability of City of Renton v. Playtime Theatres Inc. to the appellate case over the legality of 18 U.S.C. §§ 2257-2257A, the recordkeeping statutes for adult producers.

Oral arguments in the appellate review of Section 2257 are slated for Dec. 9 in Philadelphia, and the 3rd Circuit has set a Nov. 13 deadline for the supplemental briefs no longer than 15 pages from each side.

In 1986, the U.S. Supreme Court held in Renton that cities may impose regulations prohibiting adult theaters from operating within certain areas, finding that the regulation in question was a content-neutral time, place and manner restriction.

FSC attorneys contend that under a case decided at the U.S. Supreme Court earlier this year, Reed v. Town of Gilbert, the challenged statutes are content-based regulations of speech subject to review under strict scrutiny and that the once-guiding case, Renton, does not survive Reed.

Strict scrutiny presumes a law to be invalid unless the government can prove the law's constitutionality and demonstrate a compelling governmental interest in keeping it.

The government argued in its opposition that the recent decision in Reed does not affect the continued authority of a secondary-effects doctrine under Renton, which makes operators subject to intermediate scrutiny — or regulation that does not directly target speech but has a substantial impact on a particular message.

Renton aimed at the adverse secondary effects of crime and blight said to be caused by the constitutionally protected speech offered by adult bookstores and theaters, which were then reviewed under intermediate scrutiny, rather than strict scrutiny.

Industry attorney J.D. Obenberger writes in November’s XBIZ World, available here, that a great deal more than Section 2257 potentially rides on its eventual decision and possible Supreme Court review.

“[A]ll of the legal principles that are commonly used to zone adult brick-and-mortar businesses into often remote, industrial areas, to limit their hours of operation, and to regulate how they do business differently from the ways in which non-adult businesses are regulated have been placed on the table by the Department of Justice,” he wrote. “An entire structure of adult regulation during the past 50 years now stands in the balance.”

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